Bush shift on death penalty?

My guess is that within a very few weeks we will learn that George W. Bush is an opponent of the death penalty. Mind you, he won't just come right out and say it. Words will sneak out of his mouth from time to time informing us of his change of heart and, my guess is, it will all be because of the subtle effect of Justice Sandra Day O'Connor.

In a speech before the Minnesota Women Lawyers Ass. on July 2, Justice O'Connor said that "serious questions are being raised" about the death penalty. She said something that opponents of the death penalty have been saying for years. She said that "the system may well be allowing some innocent defendants to be executed."

As one of those who has frequently supported the death penalty while on the court, her comments came as a breath of life to the cause supported by opponents of the death penalty. DNA testing apparently prompted her to speak out. As a result of DNA testing, six Death Row inmates were exonerated and released in 2000 and 90 have been exonerated and set free since 1973, suggesting, said she, that "the system may well be allowing some innocent defendants to be executed."

Having apparently forgotten, at least momentarily, where George Bush ruled before being elevated to his present post, she said that defendants with more money got better legal defense than those with less money, something Mr. Bush has repeatedly denied, insofar as defendants in Texas are concerned. To prove her point, she observed that in Texas, in the year 2000, people represented by court-appointed lawyers were 28 percent more likely to be convicted than those who hired their own lawyers. If convicted, they were 44 percent more likely to be sentenced to death.

I am confident that Justice O'Connor did not mean to suggest that Mr. Bush was wrong when he said during the campaign that among all the people who have been executed in Texas, there was not one man or woman who was innocent. I am confident that her suggestion that the system may be allowing "some innocent defendants to be executed" was directed at other states. It would, after all, be unseemly for a Supreme Court Justice to contradict a sitting president.

Readers may well wonder how it is that a member of the press knows that the president's position on the death penalty is shifting. Here is the answer. The first hint came when extemporaneous words snuck out of his mouth when he was asked about the execution of the mentally retarded.

As the governor of Texas, Mr. Bush consistently opposed legislation barring execution of the mentally retarded. During the presidential campaign he reaffirmed his opposition saying that he opposed legislation that would ban the execution of the retarded. As proof that he had the courage of his convictions, while running for president he did nothing to block the execution of Oliver David Cruz who had an IQ of 63, seven points lower than the level at which people are normally considered retarded.

People who believed in what he said and what they observed, were convinced that Mr. Bush did not oppose the execution of those considered by society to be mentally retarded. That all changed when he spoke extemporaneously.

As so often happens when Mr. Bush speaks extemporaneously, strange words come out of his mouth, usually asyntactically, but always sincerely and usually from the heart as well as the mouth. Speaking to reporters before leaving for Europe in mid-June, the words that came out of his mouth said that an individual who is mentally retarded should not be executed. The exact words and their order of appearance were: "We should never execute anybody who is mentally retarded."

People who heard those words assumed the words wanted to convey the thought that Mr. Bush believed that people who were mentally retarded should not be executed. No sooner had the words been given the gift of sound, than an aide said something that was just as remarkable as what Mr. Bush had just said. She said that the words that had come out of Mr. Bush's mouth did not represent a shift in Mr. Bush's position when governor (when he permitted the execution of the mentally retarded) and during the campaign (when he said he supported executing of the mentally retarded.)

According to White House spokeswoman Claire Buchan, the president's remarks did not reflect a change in his views. "This is not a change of policy. He's talking about the standards they had in Texas."

That may be what Claire thinks. I think that she doesn't know what she's talking about. I think the next time someone can get Mr. Bush to talk extemporaneously about anything, that person should ask Mr. Bush what he thinks about the death penalty. Who knows what unscripted words (encouraged by Justice O'Connor's remarks) may be lurking in his mouth waiting to issue at the first opportunity.

The answer is no one not even Mr. Bush.

Christopher Brauchli is a lawyer in Boulder, Colo. His e-mail address is brauchli1@home.com.